UK: Agency workers: zero hours contracts

The claimant was engaged as a security guard on a zero hours contract for 21 months. A flexibility clause in his contract enabled the company to assign him to different sites as and when required, although he was generally (but not exclusively) supplied to Mitie Security Ltd to provide security services to Citi Group.

To be protected under the Agency Workers Regulations, workers must be supplied by a temporary work agency, to work temporarily for a hirer. Agency workers are entitled to the same pay and other basic working conditions as the hirer’s equivalent permanent staff after a 12-week qualifying period.

The EAT said that to determine whether individuals are agency workers, the key is to establish the purpose and nature of the work carried out by them and whether it was temporary or permanent work. As a ‘cover security guard’, the claimant was not assigned on an indefinite basis to carry out ongoing work‎ – he could be placed at any one of a number of different sites. Given the temporary nature of his work, he was an agency worker.

Comment:
This decision does not mean that workers on zero hours contracts will be agency workers – it depends on the nature of their assignment.
The terms of the workers’ contracts are relevant to agency worker status, but not determinative. It is essential to also consider whether their services are supplied on a temporary basis.

Brooknight Guarding Ltd v Matei
http://www.bailii.org/uk/cases/UKEAT/2018/0309_17_2604.html